Foreign Official Immunity: Invocation, Purpose, and Exceptions
Swiss Review of International and European Law, 2013, Forthcoming
19 Pages Posted: 23 Apr 2013 Last revised: 7 May 2013
Date Written: April 22, 2013
Government officials who are sued in foreign national courts are entitled, as a matter of customary international law, to immunity for their official actions. Scholars disagree, however, about the basis for and scope of such immunity, especially in human rights cases. Although academic articles on this topic are easy to find, far less common are clear examples of the State practice and opinio juris upon which customary international law is based. For this reason, recent Swiss and U.S. court decisions explicitly rejecting foreign official immunity in human rights cases assume particular importance. This article analyzes the decisions and their significance for customary international law, focusing in particular on the invocation of immunity, the purpose that this kind of immunity serves, and the claim that immunity in human rights cases is more limited than in other kinds of litigation. It argues based on State practice and as a matter of policy, that the immunity of officials derives from the immunity of the State itself and its purpose is to protect the State. As a consequence, the State must invoke this form of immunity in order to enjoy its protections. The recent decisions are on far weaker footing, by contrast, to the extent they suggest that immunity generally does not apply in cases alleging human rights violations.
Keywords: immunity, international law, domestic court, Samantar, Nezzar, human rights, transnational litigation, jus cogens
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